Citation Nr: 9831454
Decision Date: 10/22/98 Archive Date: 10/26/98
DOCKET NO. 94-20 414 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for a cervical spine
disability, and for a thoracic spine disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael E. Kilcoyne, Counsel
INTRODUCTION
The veteran had active military service from January 1968 to
December 1970.
The issue on appeal arises from a June 1992 rating action,
with which the veteran disagreed in July 1992. A statement
of the case was issued in October 1992, and a substantive
appeal was received later that month. In June 1993, a
hearing at which the veteran testified was conducted at the
Department of Veterans Affairs (VA) regional office (RO) in
Winston-Salem, North Carolina, and a supplemental statement
of the case was issued in October 1993. The case was
subsequently forwarded to the Board and, in July 1996, the
Board remanded the matter to the RO for additional
development. Thereafter, a supplemental statement of the
case was issued in October 1997, and the case was returned to
the Board. In June 1998, the Board remanded the matter a
second time in order to provide the veteran the opportunity
to appear at a second RO hearing, that he had previously
requested. That hearing took place in July 1998. In August
1998, a third supplemental statement of the case was issued,
and the matter was returned to the Board.
The Board also observes that, in statements dated in
September 1996 and October 1997, the veteran may be
attempting to establish entitlement to service connection for
disabilities of the left hip, the right arm, the left arm,
the left leg, and the lumbar spine. His intent, however, is
unclear. In any event, the record does not reflect that
these claims have been addressed by the RO. Therefore, they
are not properly before the Board at this time. As they are
also not inextricably intertwined with the issues on appeal,
they will not be further addressed herein, and are referred
to the RO for action deemed appropriate.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that an accidental fall he
took in service, which resulted in his service-connected
right shoulder disability, also caused a cervical spine and
thoracic spine disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
the pertinent evidence and material of record in the
veteran's claims file. Based on its review of the relevant
evidence in this matter, and for the following reasons and
bases, it is the decision of the Board that the veteran has
not met the initial burden of submitting evidence sufficient
to justify a belief by a fair and impartial individual that
his claim for service connection for a cervical spine
disability is well grounded. It is the decision of the
Board, however, that resolution of all reasonable doubt in
the veteran’s favor supports an award of service connection
for a lateral wedge configuration to the T5 vertebral body.
FINDINGS OF FACT
1. The veteran’s allegation that he has a cervical spine
disability which is related to service, or to a service-
connected disability, is not supported by any medical
evidence that would render the claim for service connection
for that disability plausible under the law.
2. All evidence necessary for an equitable disposition of
the veteran’s claim for service connection for a thoracic
spine disability has been obtained by the RO.
3. The veteran sustained an injury to the right back and
scapula during service, which has resulted in an award of
service connection for a right shoulder disability.
4. The veteran was diagnosed as having a lateral wedge
configuration to the T5 vertebral body in the 1990’s that was
considered to be the result of either a trauma or scoliosis
of the spine.
5. The only trauma the veteran sustained to the thoracic
area of his spine was the injury he sustained to that
location during service.
CONCLUSIONS OF LAW
1. The veteran has not submitted a well-grounded claim for
service connection for a cervical spine disability. 38
U.S.C.A. § 5107 (West 1991).
2. Granting the veteran benefit of the doubt, a lateral
wedge configuration to the T5 vertebral body is considered to
have been incurred during service. 38 U.S.C.A. § 1110,
5107(b) (West 1991); 38 C.F.R. § 3.102, 3.303 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Regarding the veteran’s appeal, the threshold question to be
answered is whether he has presented a well-grounded claim.
38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1
Vet.App. 49 (1990). If he has not, the claim must fail and
there is no further duty to assist in its development.
38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78
(1990). This requirement has been reaffirmed by the United
States Court of Appeals for the Federal Circuit, in its
decision in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir.
1997), cert. denied, 118 S.Ct. 2348 (1998). That decision
upheld the earlier decision of the United States Court of
Veterans Appeals which made clear that it would be error for
the Board to proceed to the merits of a claim which is not
well grounded. Epps v. Brown, 9 Vet.App. 341 (1996).
The Court of Veterans Appeals has also held that, in order to
establish that a claim for service connection is well-
grounded, there must be competent evidence of:
(1) a current disability (a medical diagnosis); (2) the
incurrence or aggravation of a disease or injury in service
(lay or medical evidence); and (3) a nexus (that is, a link
or a connection) between the in-service injury or aggravation
and the current disability. Competent medical evidence is
required to satisfy this third prong. Caluza v. Brown, 7
Vet.App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table). “Although the claim need not be conclusive,
the statute [38 U.S.C.A. § 5107] provides that [the claim]
must be accompanied by evidence” in order to be considered
well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611
(1992). In a claim of service connection, this generally
means that evidence must be presented which in some fashion
links the current disability to a period of military service
or to an already service-connected disability. 38 U.S.C.A.
§ 1110 (West 1991); 38 C.F.R. § 3.303 (1996); Rabideau v.
Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4
Vet.App. 343 (1993).
Evidence submitted in support of the claim is presumed to be
true for purposes of determining whether it is well grounded.
King v. Brown, 5 Vet.App. 19, 21 (1993). Lay assertions of
medical diagnosis or causation, however, do not constitute
competent evidence sufficient to render a claim well
grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1992);
Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992).
Under applicable criteria, service connection may be granted
for disability resulting from disease or injury which was
incurred in or aggravated by service. 38 U.S.C.A. § 1110
(West 1991); 38 C.F.R. § 3.303 (1998).
A review of the veteran’s service medical records reflects
that he was treated for a right shoulder injury after he fell
from a truck in August 1969. This was treated by use of ice,
a sling, and medication. A subsequent service medical
record, dated in October 1970, reflects that the veteran was
seen for complaints of “continuous back pain directed toward
[right] shoulder.” An orthopedic consultation report was
prepared the following month; it is a hand-written document,
and is, therefore, difficult to read. It appears to show
that, two months earlier, the veteran had begun to experience
an aching under his shoulder blade that radiated down his
back. The diagnostic impression was “prob. [illegible]
scarring [secondary to ] old injury. The treatment plan
consisted of hot packs, ultrasound, and medication. In
December 1970, the veteran underwent an examination in
connection with his discharge from service. At that time, he
reported a history of shoulder and back trouble, although his
spine and upper extremities were normal upon clinical
evaluation.
The post-service medical records associated with the claims
file are dated between 1984 and 1997. These records do not
reflect any complaints related to the neck or back until
1992, approximately 22 years after the veteran’s discharge
from service. Thereafter, the record reflects fairly
consistent complaints in these anatomical areas, which the
veteran has attributed to the injury he sustained in 1969.
He has argued that his discomfort has been present ever since
that injury, but that, because he was given the impression
there was nothing that could be done medically to help him,
he did not pursue treatment until the pain grew worse.
The earliest X-ray of the thoracic and cervical spine was
taken on February 3, 1992. It revealed that there was a
lower thoracic scoliosis towards the right, and a faintly
perceptible anterior wedging of T4 and 5, that was considered
most likely related to the scoliosis, but could be the result
of trauma. Otherwise, the disc spaces were considered
normal, the pedicles were intact, and the bony architecture
was normal.
The X-rays of the cervical spine revealed that the neck was
straight, which it was thought might be related to some
muscle spasm, but there was good preservation of the
vertebral bodies and disc spaces in the upper six levels of
the neck. The view of C7, however, suggested the possibility
of a minimal compression fracture. It was also thought,
however, that the thoracic scoliosis might have prevented a
good view of that segment of the neck. Follow-up X-rays
taken on February 10, 1992, revealed that there was a normal
lordosis, and that all seven cervical vertebrae were well
seen. This view revealed no evidence of a compression
fracture, and that there was a normal alignment. The
prevertebral soft tissues were also considered to be within
normal limits.
Subsequent records reflect that additional X-rays of the
thoracic spine were taken in April 1993, when the veteran was
seen again for back and neck complaints. These X-rays
revealed a lateral wedge configuration to the T5 vertebral
body on the right, with vertebral body height loss on the
right. At this level there was also a focal levoscoliosis.
In addition, there was a mild dextroscoliosis at the
thoracolumbar junction, and mild degenerative change
throughout the rest of the thoracic spine. The treating
physician interpreted these findings at T5 as “suggestive of
old comp[ression] fx.”
X-rays of the cervical spine taken at that time, as
interpreted by the radiologist, suggested the possibility of
spinal stenosis, although there was no evidence of
instability, acute fracture, or dislocation. The treating
physician considered the veteran’s cervical spine to be
normal.
In January 1996, an MRI of the veteran’s cervical spine was
performed. This revealed a mild to moderate disk bulge at
the C4-5 level with mass effect on the right ventral cord;
and uncovertebral joint degenerative disease resulting in
mild bilateral neural foraminal narrowing at the C4-5 level
and mild right canal narrowing at the C3-4 level.
In January 1997, the veteran underwent an examination for VA
purposes. The report of that examination revealed that there
were no postural abnormalities of either the cervical or
thoracic spine, and there were no fixed deformities. The
musculature of these areas was also considered to be
completely within normal limits, and there was no severe pain
on examination. Deep tendon reflexes were normoactive, and
there were no signs of radiculopathy. X-rays of the thoracic
spine were interpreted as revealing mild scoliosis, with no
evidence of fracture or significant degenerative change. X-
rays of the cervical spine also revealed no evidence of
fracture or subluxation, and no focal disc space narrowing or
significant degenerative change. The pertinent diagnoses
were cervical pain, with limited motion and negative X-rays;
and thoracic spine pain with normal examination. The
examiner also wrote, that “as to the patient’s neck and back
being secondary to his right shoulder disability, I see
absolutely no connection with his right shoulder, either his
neck, cervical spine, [or] thoracic spine . . . problems.”
On the foregoing record, it is the Board’s conclusion that
the veteran has not submitted a well-grounded claim with
respect to his attempt to establish service connection for a
cervical spine disability. In this regard, the Board
observes that there are no records of any complaints relating
to the cervical spine during service, and there are no
medical records reflecting any such complaints until
approximately 22 years after service. Although, currently,
the veteran apparently has cervical spine disc bulges, and
uncovertebral joint degenerative disease as revealed by
magnetic resonance imaging, the veteran is the only person
who has related these findings to service. None of the
medical evidence reflects any medical opinion linking these
findings either to service or to any of the veteran’s
service-connected disabilities. Indeed, the physician who
examined the veteran in January 1997 for VA purposes
specifically noted that there was no connection between the
veteran’s service-connected right shoulder disability, and
his cervical spine problems.
In the absence of any record of cervical spine complaints in
service, the absence of any record of such complaints for
more than 20 years after service, and the absence of any
competent medical opinion linking the veteran’s current
cervical spine problems to service, the veteran has failed to
satisfy the requirements for a well-grounded claim as set out
in the judicial precedent in Caluza, supra, and as imposed by
38 U.S.C.A. § 5107(a) (West 1991). Accordingly, there is no
duty to assist the veteran further in the claim’s
development, and the Board does not have jurisdiction to
adjudicate it. Boeck v. Brown, 6 Vet.App. 14 (1993), Grivois
v. Brown, 6 Vet.App. 136 (1994). As claims that are not well
grounded do not present a question of fact or law over which
the Board has jurisdiction, the claim for service connection
for a cervical spine disability must be denied.
As to the veteran’s personal belief that he has a cervical
spine disability which is related to service, as indicated
above, when the question involved does not lie within the
range of common experience or common knowledge, but requires
special experience or special knowledge, then the opinions of
witnesses skilled in that particular science to which the
question relates are required. Questions of medical
diagnosis or causation require such expertise. The Board
does not doubt the sincerity of the veteran’s belief in the
validity of his contentions, but he does not meet the burden
of presenting evidence of a well-grounded claim merely by
presenting his own testimony because, as a lay person, he is
not competent to offer medical opinions. See Bostain v.
West, 11 Vet.App. 124, 127 (1998), citing Espiritu, supra.
Regarding the veteran’s thoracic spine, it is observed that
the veteran complained of back pain about the scapula in
service, following the injury that produced his right
shoulder disability. The veteran also complained of back
problems, in addition to shoulder pain, when he was examined
in connection with his discharge from service.
Unfortunately, it does not appear that X-rays of the
veteran’s thoracic spine were taken during service. When X-
rays were taken in 1992, they revealed anterior wedging of T4
and 5, which was thought to be either a consequence of
scoliosis, or the result of trauma. Later X-rays, taken in
1993, again revealed a lateral wedge configuration to the T5
vertebral body on the right (on the same side as the
veteran’s shoulder injury), which the veteran’s treating
physician interpreted as suggestive of an old compression
fracture at T5. There was no affirmative link established,
however, between the current findings at the T5 level of the
veteran’s thoracic spine, and his military service.
In view of the foregoing, the Board concludes that the
veteran has submitted a well-grounded claim for service
connection for a thoracic spine disability within the meaning
of 38 U.S.C.A. § 5107(a). The veteran’s service medical
records reflect that he sustained an injury to the right
scapula/back area, and he currently has been shown to have an
impairment in the thoracic spine approximating this location.
The Board is also satisfied that all relevant evidence has
been obtained since the records the veteran has identified as
supporting his claim appear to have been associated with the
claims file, and he has undergone an examination for VA
purposes in connection with his claim. Therefore, no further
assistance is required to comply with 38 U.S.C.A. § 5107(a).
Now the Board must determine whether the evidence supports
the claim or is in relative equipoise, with the veteran
prevailing in either event, or whether a fair preponderance
of the evidence is against the claim, in which case the claim
must be denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
As set forth above, the veteran currently has a lateral wedge
configuration to the T5 vertebral body on the right, which
was considered by one radiologist to be the result of either
scoliosis of the thoracic spine, or trauma. That individual
commented that in “the absence of an impressive episode of
trauma,” the finding would very likely be related to the
scoliosis. There was no indication, however, that this
radiologist was aware of the veteran’s medical history, and
in particular, the injury he sustained in 1969. A subsequent
X-ray report does not contain any opinion concerning the
cause of this thoracic spine abnormality by the radiologists
who provided the interpretation, but the veteran’s treating
physician considered it to be suggestive of an old
compression fracture. That physician was aware of the
veteran’s military service injury, and there is no evidence
of any subsequent trauma.
Under the circumstances of this case, there is clearly some
doubt as to the cause of the T5 deformity present in the
veteran’s thoracic spine. When, after considering all the
evidence, a reasonable doubt arises regarding a determinative
issue, as here, whether the T5 deformity was caused by
trauma, or is the result of scoliosis, such doubt shall be
resolved in favor of the claimant. 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102. Having reviewed the evidence in this
case, the Board concludes that its unique facts warrant the
application of the reasonable doubt doctrine. Granting the
veteran every benefit of the doubt, the Board finds that the
T5 deformity in the veteran’s thoracic spine may be
considered to have had its onset as a result of the only
trauma confirmed in the record, i.e., the back injury
sustained during service.
ORDER
Service connection for cervical spine disability is denied.
Service connection for a lateral wedge configuration to the
T5 vertebral body is granted.
ANDREW J. MULLEN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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